State v. Ruiz

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 30,479 5 SALVADOR RUIZ, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Fernando R. Macias, District Judge

9 Gary K. King, Attorney General 10 William Lazar, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Acting Chief Public Defender 14 Nina Lalevic, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant

17 MEMORANDUM OPINION 18 KENNEDY, Chief Judge.

1 {1} Salvador Ruiz (Defendant) sought to withdraw his guilty plea prior to 2 sentencing based on his attorney’s failure to adequately advise him of the immigration 3 consequences of his plea agreement. The district court did not find his allegations to 4 be a credible indictment of his attorney’s performance and denied his motion, from 5 which Defendant appeals. We agree with the district court and affirm. 6 I. INTRODUCTION 7 {2} The parties do not dispute the procedural facts, nor the content of the testimony 8 received by the district court in its hearing on the motion. The testimony itself is 9 simply and diametrically opposed between Defendant and his wife on one hand and 10 Defendant’s attorney, Matthew Madrid, on the other. Defendant and his wife 11 maintained that Madrid had promised probation and had not discussed the certainty 12 of Defendant’s deportation upon conviction. Madrid testified that, on at least four 13 occasions, he recalled specific conversations on the subject of certain deportation. 14 Both sides agree that Defendant’s wife acted as his interpreter in conversations with 15 Madrid concerning the range of consequences should he be convicted of a second- 16 degree felony involving a sex crime with a minor. Our decision rests on the district 17 court’s inherent ability to resolve the contradictory testimony from the witnesses as 18 to the content and nature of attorney-client communications. Our review is for

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1 substantial evidence to support a discretionary ruling. We will discuss the facts as 2 needed for our decision. 3 II. BACKGROUND 4 {3} Defendant was indicted for various crimes, all of which involved sexual 5 misconduct with a minor under thirteen years of age. At various times prior to the 6 trial scheduled for late October 2010, Defendant and Madrid discussed whether he 7 should enter into a plea agreement. Defendant was reluctant to do so. Madrid spoke 8 little Spanish, and Defendant spoke little English, so Defendant and Madrid 9 predominantly communicated by using Defendant’s wife as a translator. Ultimately, 10 on November 30, 2009, Defendant pled guilty to one count of attempted criminal 11 sexual penetration (CSP) of a minor under thirteen in the first degree, which is a 12 second-degree felony. 13 {4} Defendant and Madrid met and reviewed the plea the night before. When 14 Defendant entered his guilty plea, he went over the plea documents prior to the 15 hearing with Madrid and the court interpreter. Defendant then signed the documents. 16 The documents signed by Defendant on that day included the notification that he 17 would have to register as a sex offender, stated the maximum sentence of nine years 18 incarceration available under the charge, and incorporated his statement that his 19 attorney had advised him of the immigration consequences of the plea agreement. The

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1 district court signed a similar certification on the plea proceeding, after directly 2 questioning Defendant through an interpreter as to his awareness that his plea could 3 have immigration consequences, and that he had discussed the matter with his attorney 4 and received affirmative answers on the record. Testifying later, Defendant 5 acknowledged understanding that, according to the papers he signed, there “might be 6 a deportation.” The district court accepted the plea. 7 {5} Less than two weeks later and prior to sentencing, a new defense attorney 8 moved to substitute himself in place of Madrid and quickly moved to withdraw 9 Defendant’s guilty plea. The substitution was granted, and the motion to withdraw 10 the plea was set for hearing. 11 {6} At the motion hearing, Defendant asserted that his plea was based on Madrid’s 12 advice that any deportation proceedings instituted as a result of his pleading to the 13 attempted CSP charge were defensible because he was a legal resident alien and 14 would receive probation. Defendant alleged that he had since found out from an 15 immigration attorney that was not the case, and he instead faced certain deportation. 16 Defendant attached affidavits from himself and his wife to his motion, stating the 17 above facts and that he had learned about the automatic deportation after he had 18 entered into the plea. Defendant and his wife both testified that Madrid had promised 19 that the plea would result in probation and had not spoken of immigration

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1 consequences. Defendant stated that, if he had known of the automatic deportation, 2 he would not have pleaded guilty, but would have proceeded to trial. Defendant 3 consequently sought to withdraw his plea under State v. Paredez, 2004-NMSC-036, 4 136 N.M. 533, 101 P.3d 799, and State v. Carlos, 2006-NMCA-141, 140 N.M. 688, 5 147 P.3d 897. 6 {7} In the hearing that followed, neither Defendant nor his wife wavered from their 7 position that Madrid had conveyed only that he would work to ensure that Defendant 8 would get probation and be able to defend a deportation action. Defendant stated that 9 Madrid had not suggested that he consult with an immigration attorney, nor informed 10 him that deportation was a certainty. Defendant testified that, at the plea proceeding, 11 he realized that he might be deported, but that was not consistent with Madrid 12 informing him that he would do whatever he could so Defendant would not be 13 deported. 14 {8} During the motion hearing, Madrid testified that, while representing Defendant 15 for about a year, he recalled informing Defendant and his wife of the immigration 16 consequences on four occasions. He had informed both Defendant and his wife that, 17 owing to the severity of the accusation against Defendant, sex offender registration 18 and deportation were unavoidable upon any conviction, as was doing some mandatory 19 time in prison. Madrid testified that he was familiar with immigration statutes,

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1 particularly, the sections defining aggravated felonies, which include attempted CSP 2 of a minor. He recalled that he informed Defendant about deportation being the 3 consequence of pleading to attempted CSP, even though it was not a charge in the 4 original indictment. Madrid also testified that he had discussed the consequences of 5 illegal re-entry into the United States should Defendant attempt to return after 6 deportation. Madrid believed that both Defendant and his wife understood the advice 7 he had provided. He stated that he had sent Defendant and his wife home with the 8 plea the night before Defendant entered his plea in court and had gone over it with 9 Defendant and a court interpreter the morning of the change of plea proceeding. 10 Madrid further testified that he would not have proceeded with the plea if he had any 11 doubts about whether Defendant misunderstood any of the plea agreement terms. He 12 testified that he never left a conversation about the case with Defendant and his wife 13 without feeling like he had adequately answered all questions that had arisen. Madrid 14 denied making statements about the likelihood of probation or defensibility of any 15 deportation action. 16 {9} As to his knowledge of the consequences of Defendant’s plea, Madrid testified 17 that he had five years of experience practicing criminal law. Despite lacking formal 18 training in immigration law, he was familiar from his practice with federal 19 immigration statutes, 8 U.S.C. §§ 1101 (2012), 1227 (2008), 1229 (2006), “that deal

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1 with . . . when someone would be deported after being convicted of a crime.” Specific 2 to Defendant’s situation, Madrid testified that he had at least four conversations with 3 Defendant and his wife discussing possible plea agreements. The night before the 4 plea, Madrid remembered Defendant “trying to get me to say that there was a way he 5 was not going to be deported.” He testified that he told Defendant that, in his 6 experience, the only client who had not been deported was one who had been given 7 a deferred sentence on a misdemeanor and who had still experienced significant 8 immigration problems. Madrid further testified that he informed Defendant, “in no 9 uncertain terms, that probation was not an option in my mind.” This was based on his 10 assessment of the case from the witness interviews and his experience. Madrid stated 11 that they had also discussed immigration status. He testified that, on the first day he 12 met Defendant, he told him that any plea offer that would be forthcoming from the 13 State “would require deportation and a sex offender registration.” He advised 14 Defendant to all possible consequences of the three charges, and Defendant appeared 15 to understand. After witness interviews, Madrid again discussed a pending plea offer, 16 deportation, and illegal re-entry into the United States with Defendant and his wife. 17 He testified that he recalled another telephone conversation in which he was specific 18 that a plea would involve mandatory time, sex offender registration, and deportation, 19 and that this conversation was somewhat heated. He recalled a conversation in which

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1 Defendant’s wife asked if there was any possibility of probation or no deportation, and 2 he informed her that was not possible. Madrid testified that, in all the plea discussions 3 he had with the State, probation was never discussed as an option. 4 {10} The district court denied Defendant’s motion to withdraw his plea, stating that 5 there was no credible evidence supporting his position that Madrid had not adequately 6 represented him. The district court stated that Defendant’s testimony had been very 7 narrow and incongruous in light of the severity of the charges he faced, specifically, 8 the potential for nine years of imprisonment, which weakened the credibility of his 9 testimony that he relied on Madrid’s assurance that he would get probation and not be 10 deported. Last, the district court stated that, in light of Defendant’s testimony about 11 having gone through the process of becoming a registered legal resident, there could 12 be no question in the Defendant’s mind that persons who commit crimes in this 13 country are subject to deportation. The district court did not give much weight to 14 Defendant’s or his wife’s testimony. Consequently, the district court regarded 15 Defendant’s plea as voluntary, and Madrid’s representation of him as sufficient. 16 Defendant appealed after sentencing. 17 III. DISCUSSION 18 A. Standard of Review

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1 {11} “A motion to withdraw a guilty plea is addressed to the sound discretion of the 2 trial court, and we review the trial court’s denial of such a motion only for abuse of 3 discretion.” State v. Garcia, 1996-NMSC-013, 121 N.M. 544, 546, 915 P.2d 300, 4 302; see Paredez, 2004-NMSC-036, ¶ 5. An abuse of discretion would be established 5 if undisputed facts established that the plea was not knowingly and voluntarily made 6 by the defendant. Id. Misinforming a criminal defendant and failing to inform a 7 defendant of the immigration consequences of a plea are objectively unreasonable and 8 constitute deficient performance. State v. Ramirez, 2012-NMCA-057, ¶ 17, 278 P.3d 9 569, cert. granted, ___-NMCERT-___, 294 P.3d 1244 (No. 33,604, June 5, 2012). 10 This includes incorrect advice, no advice, and advice insufficient to support an 11 informed decision to plead guilty. Id. By alleging that Defendant was incorrectly 12 advised that deportation could be avoided despite his plea, his motion made a prima 13 facie case of ineffective assistance that required a hearing. Paredez, 2004-NMSC- 14 036, ¶ 15. Establishing entitlement to a hearing is not carrying Defendant’s burden 15 of providing sufficient evidence to demonstrate that the plea should be withdrawn. 16 See State v. Clark, 108 N.M. 288, 292, 772 P.2d 322, 326 (1989) (holding that the 17 defendant must show that the trial court abused its discretion by denying withdrawal 18 of the plea). We review claims of ineffective assistance of counsel as mixed questions 19 of law and fact. Carlos, 2006-NMCA-141, ¶ 9. Questions of fact are reviewed “in

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1 a light most favorable to the prevailing party, as long as the facts are supported by 2 substantial evidence.” State v. Vandenberg, 2003-NMSC-030, ¶ 18, 134 N.M. 566, 3 81 P.3d 19; see State v. Leyva, 2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 P.3d 861. 4 While reviewing the sufficiency of the evidence supporting the defendant’s 5 allegations, we also indulge a presumption that his counsel provided adequate 6 representation. State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289. 7 The question of whether the defendant received ineffective assistance is then a legal 8 question, which we review de novo. Carlos, 2006-NMCA-141, ¶ 9. 9 B. The District Court Did Not Abuse Its Discretion 10 {12} We initially note that Defendant’s motion to withdraw his plea was made very 11 soon after he pled prior to his sentencing and was heard by the same judge who took 12 the plea. We thus cannot discount the district court’s first-hand experience with the 13 case and the subsequent diametrically opposed testimony of Defendant and Madrid 14 at the plea proceeding. Advising Defendant in a case in which he was charged with 15 three sexual offenses involving a child under the age of thirteen, Madrid was certainly 16 aware of the gravity of Defendant’s situation and testified concerning his familiarity 17 with federal statutes, mandatory sex offender registration, and his certainty that 18 Defendant faced automatic deportation if convicted. There was no doubt that a 19 consequence of Defendant’s plea would be registration as a sex offender, and

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1 Defendant makes no claim that this collateral consequence was not explained to him. 2 Paredez clearly notes that criminal sexual contact of a minor is an automatically 3 deportable offense. 2004-NMSC-036, ¶ 4. Judge Vigil’s concurring opinion in 4 Carlos points out that attempts to commit crimes of violence are similarly treated. 5 2006-NMCA-141, ¶ 31 (Vigil, J., specially concurring). 6 {13} Defendant’s brief recounts at length the extent of discussions, family influence, 7 and possible use of a polygraph as a tool to ascertain with him the propriety of a plea. 8 The State’s brief goes to great pains to outline Madrid’s testimony in terms of both 9 frequency and content of the conversations he had on the subject. Madrid testified 10 that he had no reason to believe that Defendant’s wife failed to convey his meaning 11 when translating. The district court examined Madrid and specifically determined that 12 Defendant was aware that a sex crime of any sort, including attempt against a minor, 13 is a deportable offense and had so informed Defendant. 14 {14} Defendant argues that the proper standard of representation is that, in every 15 case, an attorney must employ a rote process. The attorney evaluates specific federal 16 statutes, specifically equates those crimes requiring certain deportation with those his 17 client faces, and gives specific advice. Id. ¶ 14. Defendant emphasizes that Madrid 18 testified that he did not specifically look up statutes, nor follow Carlos’s laundry list 19 of actions. Id. ¶ 16. We see Carlos’s interpretation of Paredez as more general and

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1 realistic, adopting a “general rule” that requires criminal defense counsel to determine 2 the immigration status of the defendant. Carlos, 2006-NMCA-141, ¶ 14. An attorney 3 must be sufficiently aware of federal immigration law so as to enable him to give a 4 defendant “a definite prediction as to the likelihood of deportation based on the crimes 5 to which a defendant intends to plead and the crimes listed in federal law for which 6 a defendant can be deported.” Id. In short, there is a point at which an attorney’s 7 experience can provide the basis for his or her knowledge that conviction for certain 8 crimes begets unavoidable immigration consequences. An exhaustive review of 9 immigration law is not always necessary. 10 {15} In this case, Defendant’s second attorney established that Madrid had not 11 specifically consulted with an immigration attorney prior to giving advice to 12 Defendant. However, Madrid stated that he already knew that sexual abuse of a minor 13 was an aggravated felony under 8 U.S.C. § 1101. Madrid testified that he knew that 14 the specific crime to which Defendant pled was one that would result in deportation. 15 He also testified that he has had several clients who have been deported and was 16 familiar with the list of aggravated felonies that would require deportation. 17 {16} In Paredez, the Supreme Court specifically took notice of the inescapable 18 immigration consequences of a plea to a charge of criminal sexual penetration of a 19 minor. 2004-NMSC-036, ¶ 4. The specially concurring opinion in Carlos lays out

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1 the interrelationship of 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1229(a)(3), and 1101(a)(43). 2 Carlos, 2006-NMCA-141, ¶ 31 (Vigil, J., specially concurring). We regard any 3 insistence that Madrid should have cited specific statutes to Defendant in this case 4 superfluous, in light of the clear advice he gave based on his experience and general 5 knowledge of the law through using it in his practice. Madrid knew that Defendant 6 would receive a mandatory amount of time in prison, have to register as a sex 7 offender, and would be deported. Madrid testified unequivocally that he alerted 8 Defendant to the conclusive likelihood of deportation. He was similarly unequivocal 9 in testifying that he did not tell Defendant he would get probation or have a good 10 chance at fighting deportation. 11 {17} The district court found that Defendant had not credibly proven that Madrid 12 failed to adequately advise him of the consequences of pleading guilty to a charge of 13 attempted CSP of a minor. To the extent that Paredez requires a showing of failure 14 to advise of specific immigration consequences involving almost certain deportation 15 together with showing prejudice to the defendant, failure to establish the first element 16 of the Paredez test obviates any need to consider any prejudice to the defendant. 17 2004-NMSC-036, ¶¶ 14, 16. The testimony was, as we mentioned above, 18 diametrically opposed. It is the job of the fact finder to resolve conflicts in the 19 evidence. Thus, it was the district court’s prerogative to regard either side’s testimony

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1 as credible and decide to accept Madrid’s testimony, which established the 2 reasonableness of his action by substantial evidence. Our review of the testimony 3 leads us to no different conclusion. Additionally, our opinions since Paredez have 4 taken a dim view of the value of self-serving statements. Because courts are reluctant 5 to rely solely on the self-serving statements of a defendant, which are often made after 6 he has been convicted and sentenced, a defendant is generally required to adduce 7 additional evidence to prove that there is a reasonable probability that he would have 8 gone to trial. Patterson v. LeMaster, 2001-NMSC-013, ¶¶ 29, 31, 130 N.M. 179, 21 9 P.3d 1032 (stating that the Supreme Court also looked to extrinsic evidence that the 10 defendant had been steadfast in maintaining his innocence, and the strength of the 11 evidence against him to more objectively assess his veracity when stating that he 12 would have taken his chances at trial). No extrinsic evidence was invoked or was 13 before the district court in this case. The record concentrates only on the allegations 14 by Defendant and his wife that Madrid provided deficient advice and hollow promises 15 of probation. As such, their credibility in the mind of the district court is the criterion 16 on which Defendant’s case rose and fell. Substantial evidence supports the district 17 court’s decision, and ineffective assistance is not established by the facts as a matter 18 of law. 19 IV. CONCLUSION

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1 {18} We conclude that the denial of Defendant’s motion by the district court was 2 within its discretion and reasonably based on the district court’s experience with the 3 case and evidence presented in the motion hearing. The district court’s denial of 4 Defendant’s motion to withdraw his plea was not erroneous, and we affirm the district 5 court. 6 {19} IT IS SO ORDERED.

7 ____________________________________ 8 RODERICK T. KENNEDY, Chief Judge

9 WE CONCUR:

10 _________________________________ 11 JAMES J. WECHSLER, Judge

12 _________________________________ 13 MICHAEL D. BUSTAMANTE, Judge